Review of the Building and Construction Security of Payment Act 2009
Amendments to the Retail and Commercial Leases Act 1995 and Building and Construction Industry Security of Payment Act 2009
At the conclusions of the current Parliamentary sitting on Thursday 30 November 2017, amending bills for both of the above Acts were awaiting consideration in the Legislative Council of the SA Parliament after having passed through the House of Assembly.
Both bills have now lapsed. But it remains the Small Business Commissioner's position that the changes proposed under the two bills will be recommended to the Government of the day post the March 2018 election.
The changes were announced by the Minister for Small Business, Hon Martin Hamilton-Smith MP and his media release can be found here.
The original bills and second reading speeches can be found below.
Building and Construction Industry Security of Payment (Review) Amendment Bill 2017
Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017
Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017 Second Reading Speech
Background
The State Government has launched the next stage of a program to improve payments to subcontractors in the building industry with the release of a series of proposed changes for consultation.
Minister for Small Business, Martin Hamilton-Smith, has asked the Small Business Commissioner, John Chapman, to coordinate submissions on proposed changes to the Building and Construction Industry Security of Payment Act 2009 (the Act) and other initiatives to improve payment to subcontractors in the building and construction industry.
The Consultation Paper details the Small Business Commissioner’s recommendations to the State Government, which include that of the review of the Act undertaken by Retired District Court Judge Alan Moss. This review was tabled in both Houses of Parliament on 12 May 2015.
The proposed changes are set out in a three stage approach. It is anticipated that the expeditious implementation of stage one will result in a significant improvement in the operation of the Act and principal contractor behaviour. A heavier regulatory approach could be implemented by the Government under stage two, and possibly stage three, if the changes made under stage one fail to improve conduct in the industry and payment to subcontractors.
The consultation period closed on 19 August 2016.
The Small Business Commissioner has reviewed the submissions and forwarded a report to the Minister for Small Business.
Submissions received are listed below, unless confidentiality has been requested.
The Moss Review can be found here, the Consulation Paper can be found here and the Building and Construction Security of Payment Act 2009 and Regulations can be found here.
View the Ministers News Release dated 17 June 2016 here
SUBMISSIONS RECEIVED
Australian Mediation Association
Integrated Engineering Systems Pty Ltd
Law Society of South Australia
Australian Institute of Building
Masonry Contractors Australia Ltd
Society of Construction Law Australia Ltd
Master Builders South Australia
Master Plumbers of South Australia
Air Conditioning & Mechanical Contractors Association of SA
Department of Planning, Transport and Infrastructure
Urban Development Institute of Australia (SA)
Australian Building & Construction Dispute Resolution Service
Anonymous comment received via the feedback page on the SASBC website
The comment in paragraph 24 of the Moss Report is understated. It is common knowledge throughout the industry that a builder will "Black Ban" any subcontractor who attempts to make a claim under the Act.
